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A Refereed Study

The Condition of Conducting


Ijtihaad on the Part of Judges







Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-
Azeez Al-Mish'al
*

*
Associate Professor in Islamic Jurisprudence and its Principles, College of
Sharee'ah, Imaam Muhammad ibn Sa'ud Islamic University, Riyadh.
Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al


100
Al-Adl (43)
Introduction
All praise is due to Allah who has commanded justice and kindness,
and may Allah's peace and blessings be upon our Prophet Muhammad,
the Seal of Prophethood, upon his noble family and noble companions
as well as upon those who follow them in righteousness until the Day of
Judgment.
Conducting ijtihaad
2
in Islam is essentially one of the issues that
Muslim scholars in the area of usool al-fiqh
3
(principles of Islamic
jurisprudence) have systematically tackled in their writings. They have
actually devoted a section in their writings to the issue of ijtihaad and
taqleed.
4

Administering justice and passing judgments in Islam is doubtless
based upon this salient feature of Islamic jurisprudence, namely
conducting ijtihaad which provides an adequate opportunity for doing
so. For when the judge takes into account the cases before him, he has to
carry out ijtihaad, to the best of his ability, before he actually passes a
judgment. The Prophet (peace be upon him) once said, "If a judge gives
a verdict according to the best of his knowledge [by exercising ijtihaad]
and his verdict is correct, he will receive a double reward; and if he
gives a verdict according to the best of his knowledge and his verdict is
wrong, even then he will get a reward."
Therefore, it becomes crystal clear that the task of conducting ijtihaad is
inseparable from passing judgments and issuing verdicts in Islamic
jurisprudence. Thus, a judge is required to reflect on the cases brought

2
Ijtihaad is the endeavour of a Muslim scholar to interpret the source materials, infer
rules from them, or give a legal verdict or decision on any issue on which there is no
specific guidance in the Qur'an and the Sunnah. A Mujtahid: (plural: mujtahidoon) is the
expert scholar who exercises ijtihaad (Translator's Note)
3
Usool al fiqh (principles of Islamic jurisprudence, philosophy of law) is the methodology
of deriving laws from the sources of Islam and of establishing their juristic and
constitutional validity. Usoolee (pl. usooliyyoon) is the expert scholar in this area of
interest. (Translator's Note)
4
Taqleed is the opposite of ijtihaad and means the uncritical adoption or imitation of a
particular scholar or school of thought (madhhab). (Translator's Note)
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before him, carefully consider them and take into account all the
evidence available before he issues any verdict or judgment.
in view of the importance of this issue which is inextricably bound up
with the task of passing judgments, which in its turn occupies the
highest position in Islam due to its serious nature, people's dire need for
it to settle disputes and realise justice as well as judges' need to be well-
versed in Islamic teachings, I have deemed it highly appropriate to delve
deeply into the issue of meeting the condition of conducting ijtihaad on
the part of those who take up their posts as judges, discussing all its
aspects, delineating its direct relationship with the principle of Islamic
jurisprudence (usool al-fiqh), particularly regarding ijtihaad matters and
when a judge may rightly be considered a mujtahid.
Part One: Linguistic and Technical Definitions of the
Word Ijtihaad
A. Linguistic Definition
The word ijtihaad derives from the Arabic verbal root (jahada,
"struggle"), which generally means, as linguist Ibn Faaris mentions,
'hardship, difficulty, struggle' and anything else in this sense. It is said,
"jahadtu and ajhadtu nafsee, meaning 'I have exerted myself to the
utmost'. The noun juhd, derived from it, means ability, struggle and
effort.
5
Almighty Allah says, "Those (i.e. the hypocrites) who criticise the
contributors among the believers concerning their charities and criticise
the ones who find nothing to spend except their effort (juhd), so they
ridicule them."
6
According to some leading Arab linguists, the verb form
may also used interchangeably with the word jahada to mean 'strain,
exhaust, tire out' with reference to illness or any other thing which
causes feelings of discomfort.
It is also used metaphorically to mean 'exert oneself to the utmost with
a view to producing an opinion', as Mu'aadh ibn Jabal said when the
Prophet (peace be upon him) asked him what he would do if he wanted
to judge between people but could not find any guidance in the Qur'an

5
Ibn Faaris, Mu'jam Maqaayees al-Lughah, 1/487.
6
Soorat at-Tawbah, 9:79.
Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al


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Al-Adl (43)
and the Sunnah: "ajtahidu ra'yee",
7
meaning, "I will make every effort to
come up with the right opinion."
By considering all the senses in which the Arabic verbal root (jahada) is
employed, we will find that they all mean 'struggle, hardship, effort' and
any other sense to this effect. Among words which carry this meaning
are the words wus' and taaqah, which both denote strength, power and
capability. These words can produce such statements as 'spare no effort',
'make every effort', 'go to great pains', 'leave no stone unturned' and 'do
all in one's power'.
The linguistic definition of the term provided by the usooliyyoon is to
some extent similar to that furnished by Arab linguists, but a large
number of them have pointed out something very important, namely
that ijtihaad is used only about things which require an unusually great
amount of effort. Therefore, they argue, it is not appropriate to say that
someone has made an effort (ijtihaad) in carrying a loaf of bread or his
whip, as no hardship is involved here; rather, it is more appropriate to
say that someone has made an effort (ijtihaad) in carrying a millstone or
something equally heavy, as hardship is clearly involved in carrying out
this task. In fact, the verb ijtahada consist of the 't' consonant which
clearly signifies excessive sufferance and endurance. An example of this
type of verbs is the verb iqtala'a, extract [a tooth] or uproot [a plant].
8

B. Technical Definition
In the terminology of the usooliyyoon, the definition of the word ijtihaad
is provided in view of two things:
1. With regard to its descriptive or qualitative sense. That is, in
view of it being a description or a state, and thus whoever fits such a
description is called a mujtahid. The closest definition furnished by the
usooliyyoon in this regard is: "making every effort to comprehend the
goals of the Sharee'ah with a view to gaining some knowledge regarding
a legal ruling."
9


7
This is part of a hadeeth reported by Abu Daawood, Book of Judgments, hadeeth no. 3592,
at-Tirmidhee, Book of Judgments, hadeeth no. 1327 and Imaam Ahmad in Al-Musnad,
5/273.
8
Al-Aamidee's Al-Ihkaam, 4/162, Sharh al-'Adhud 'Alaa Mukhtasar ibn Haajib, 2/289 and
Nafaa'is al-Usool fee Sharh al-Mahsool, 9/3788.
9
Dr. Taha al-'Alwaanee, Ijtihaad and Taqleed in Islam (in Arabic), p. 16.
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2. With regard to it being a faculty or property which is established
regarding the person who performs ijtihaad. In fact, most scholars of
usool al-fiqh (the usooliyyoon) have not, in my estimation, touched on this
aspect of ijtihaad; rather, some contemporary scholars amongst them
have defined it as "the competence to infer expert legal rulings from
foundational proofs."
10
We need perhaps to cover both senses in the
present paper, for its objective is to identify the extent to which this
description is met by those who undertake to issue verdicts and
judgments (i.e. judges) and their attempt to observe this when dealing
with cases brought before them.
Part Two: Categories of Mujtahidoon
11

A discussion of the categories of mujtahidoon in Islam and the levels of
ijtihaad is of paramount importance here, as this will help identify the
aims and objectives of the present paper; for if we look at the conditions
which ought to be met by a mujtahid according to the usooliyyoon and
the levels of ijtihaad in Islam, we will certainly be able to see whether or
not such conditions are met by those who undertake to issue legal
verdicts and judgments, or whether only some of them are met, for the
mujtahidoon do not occupy the same position in this regard, hence the
importance of the present prelude to the issue of delineating the
categories of mujtahidoon as to the rulings of the Islamic Law (Sharee'ah).
Scholars of the principles of Islamic jurisprudence (usooliyyoon) maintain
that the mujtahidoon can be classified, according to their positions and
the levels of conducting ijtihaad, into a number of categories, as follows:
Independent (mustaqill) Mujtahid
An independent mujtahid occupies the highest position in conducting
ijtihaad and only a few jurists have actually attained such a lofty
position. In fact, such a mujtahid is capable of issuing legal verdicts in all
aspects of the Sharee'ah and is certainly well versed in the Qur'an, the
Prophet's Sunnah and the statements of the Prophet's companions. He is

10
Musa Tawaanah, Ijtihaad and our Dire Need for it in the Present Time (in Arabic), p. 120.
11
A mujtahid (pl. mujtahidoon) is the expert scholar who exercises ijtihaad (Translator's
Note)
Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al


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Al-Adl (43)
also capable of finding solutions of the problems and questions which
arise and make a judgment between proofs and distinguish strong
proofs from weak ones. He also furnishes the sources of the proof and
provides research on new issues in the light of current proofs.
12

Ibn al-Qayyim writes, "[Scholars] belonging to this category are
qualified enough to issue legal verdicts, people may seek their opinions
and the obligation of conducting ijtihaad will undoubtedly be carried out
through them."
13
Some later scholars hold that Muslim jurists are
unanimously agreed in this respect.
14

The usooliyyoon have stipulated a number of conditions to be met by a
mujtahid who has attained this level, most important of which are as
follows:
a. He must be a Muslim.
b. He must be legally responsible (mukallaf); i.e. he must have
attained puberty and must be of sound mind and intellectual
competence.
c. He must demonstrate integrity.
15

d. He must be well versed in the proofs to which recourse is taken
to issue rulings, namely the Qur'an, the Sunnah, unanimous agreement
of Muslim scholars (ijmaa') and deduction by analogy (qiyaas)
16
. This also
includes other forms of legal evidence to which jurists refer to issue
rulings, such as istishaab
17
, 'urf
18
, sadd adh-dharaa'i
19
', istislaah
20
and
istihsaan
21
, among others.

12
See Ibn al-Qayyim, I'laam al-Muwwaqqi'een, 4/212 and Musa Tawaanah, Ijtihaad and our
Dire Need for it in the Present Time (in Arabic), p. 357.
13
I'laam al-Muwwaqqi'een, 4/212.
14
Ijtihaad and our Dire Need for it in the Present Time (in Arabic), p. 356.
15
This means he must refrain from all the prohibitions of the Sharee'ah and perform all
its obligations.(Translator's Note)
16
Recourse to analogy is only warranted if the solution of a new case cannot be found in
the Qur'an and the Sunnah. Analogy then consists in extending a principle (asl)
derived from the Qur'an and the Sunnah to the new case. Analogical deduction cannot
operate independently of the nusoos. (Translator's Note)
17
Istishaab: Presumption of continuity, or presuming continuation of the status quo ante.
For example, istishaab requires that once a contract of sale, or of marriage, is concluded
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In fact, the usooliyyon have detailed these conditions. They argue that a
mujtahid must know the legal rulings mentioned in the Qur'an. If he is a
judge, he must be fully acquainted with the legal contents of Qur'anic
verses (aayaat al-ahkaam) in the domain of passing judgments as well as
the so-called naasikh and mansookh (the abrogator and the abrogated).
22

As for the Sunnah, he must know the Prophetic traditions relating to
legal rulings, the traditions that have been abrogated and those that
have abrogated them (naasikh and mansookh). He must also distinguish
the authentic traditions employed as evidence from the weak ones.
Regarding the unanimous agreement of Muslim scholars (ijtihaad), he
ought to be aware of such agreements in order not to contradict them.
An example of this is his knowledge that his ruling is in accordance with
a certain school of jurisprudence or that the case he is dealing with is
novel and none of the scholars has ever tackled it before.
Concerning deduction by analogy (qiyaas), he must be well versed in
its conditions, requirements and everything related to it.
23

e. He must be competent in the Arabic language and be aware of
the subtle nuances of the meanings of Arabic words. The usooliyyoon
argue that a mujtahid must be well versed in Arabic and must appreciate
the subtleties of the language in order to understand the language in

it is presumed to remain in force until there is a change established by evidence.
(Translator's Note)
18
'Urf is the Local or prevailing custom which is `recognizably' good. (Translator's Note)
19
Sadd adh-Dharaa'i': Literally, blocking the means. Implies blocking the means to an
expected end or an evil which is likely to materialize if the means towards it is not
obstructed. For example, illicit privacy between members of the opposite sex is
blocked or made unlawful because of the prohibition of adultery. (Translator's Note)
20
Istislaah and istihsaan are two methods of reasoning much discussed in the books of
usool al-fiqh. The two conceptions as a result of their close relationship are sometimes
confused. (Translator's Note)
21
Istihsaan: Juristic preference - the abandonment of one legal ruling for another which is
considered better or more appropriate to a given circumstance. (Translator's Note)
22
The naasikh (active participle) refers to the passage which abrogates or supersedes the
part which is abrogated. The abrogated passage is called mansookh (passive participle).
(Translator's Note)
23
See Al-Ghazaalee, Al-Mustasfaa,, 2/351; Al-Aamidee, Al-Ihkaam, 4/163; Ibn Qudaamah,
Rawdhat an-Naadhir, 3.960; and Al-Bahr al-Muheet, 6/199.
Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al


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Al-Adl (43)
which the Qur'an was revealed and thus easily distinguish between
plain, manifest and ambivalent words as well as distinguish the general
from the specific, the literal from the metaphorical and the absolute from
the specified, among other things. This will also help him understand
the actual meaning of speech, for the Qur'an was revealed in a clear
Arabic language, and the Prophet (peace and blessings be upon him)
was the most eloquent person who has ever spoken this language.
Therefore, any person who considers the Qura'nic and Sunnah texts
ought to be well versed in Arabic.
Ash-Shaatibee mentions that the validity of conducting ijtihaad
regarding legal rulings is dependent upon attainment of the rank of
ijtihaad in Arabic, specifically with regard to words and their meanings.
Ash-Shaatibee actually goes as far as to say that a mujtahid must be
proficient in Arabic in order to attain such a rank. He also considers that
proficiency in Arabic is the first requirement of understanding the
Sharee'ah, for Almighty Allah revealed it to His Messenger (peace and
blessings be upon him) in an Arabic tongue and through it Allah's Book
and the Prophet's statements will be understood. Therefore, a learner
must begin with the Arabic language, as it must be given priority over
anything else.
Ash-Shaatibee writes in this connection, "As the Qur'an and the
Sunnah are in Arabic, only someone who is well versed in Arabic can
examine them [to deduce legal rulings], just as someone is not allowed
to talk about them unless he is aware of their intents. Engaging in
examining them [for this purpose] will not be valid without being well
versed in them, for in this case he will not be confused by any aspect of
the Sharee'ah."
24

f. He must understand the objectives of the Sharee'ah.
25
Ash-
Shaatibee stipulates this condition and considers it to be the foremost
and most important condition of carrying out ijtihaad. He argues that the
position of conducting ijtihaad cannot be attained without first fully

24
Al-Muwwaafaqaat, 3/213.
25
The objectives of Islamic Law (maqaasid ash-Sharee'ah) are the purposes and goals that
it aspires to achieve through its laws, especially with respect to human welfare.
(Translator's Note)
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understanding the objectives of the Sharee'ah. He also considers a
scholar's lack of understanding the Sharee'ah objectives to be the main
reason behind his mistakes and that failing to meet this condition easily
leads to introducing innovations in religion.
26

Some usooliyyoon have stressed the importance of this condition which
must be met in order to be eligible to conduct ijtihaad.
27

g. He must be able to carry out istinbaat.
28
In fact, this condition
follows as a consequence from the abovementioned conditions. Ash-
Shaatibee considers this condition to serve the previous condition,
namely understanding the objectives of the Sharee'ah and a
complementary condition to attain the position of conducting ijtihaad.
29

Many usooliyyoon have also considered this to be the most important
condition to conduct ijtihaad.
30

These are the most important conditions which must be met by an
independent mujtahid who is able to carry out absolute ijtihaad. Scholars
who have attained this position of ijtihaad include the major companions
of the Prophet (peace and blessings be upon him), the major taabi'oon
31

and the four leading Muslim jurists, namely Abu Haneefah, Maalik,
Ash-Shaafi'ee and Ahmad.
Affiliated (muntasib) Mujtahid
Ibn al-Qayyim states that an affiliated (muntasib) mujtahid is one who is
well versed in the legal verdicts issued by the leader of his madh-hab
(school of jurisprudence) and fully knows his sayings, major principles
as well as objections to his opinion and is able to use the commentaries
of his imaam (school's leader) for assistance in finding the proofs. He is
also capable of drawing analogous conclusions from whatever his imaam

26
Al-Muwwaafaqaat, 5/41 and 135.
27
See Al-Juwaynee, Al-Burhaan, 2/874-875; and Al-'Izz ibn 'Abd as-Salaam, Qawaa'id al-
Ahkaam Fee Masaalih al-Anaam, 2/160.
28
Istinbaat (inference) means deducing a somewhat hidden meaning from a given text.
The process of extracting laws. (Translator's Note)
29
Al-Muwwaafaqaat, 5/42.
30
See ash-Shaafi'ee, Ar-Risaalah, pp. 509-510; Ibn 'Aqeel, Al-Waadhih, 1/359; and Al-Bahr
al-Muheet, 6/199.
31
The Taabi'oon (literally, followers): The generation of Muslims immediately after the
Prophet's Companions. (Translator's Note)
Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al


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has stated without necessarily adopting his legal ruling or the evidence
he has furnished. He only follows his leader's way of exercising ijtihaad
and issuing legal verdicts and calls to his school of jurisprudence. He
adopts his leader's methodology of conducting ijtihaad but does not
necessarily imitate him.
32

Amongst these, Ibn al-Qayyim mentions al-Qaadhee Abu Ya'laa from
among the Hanbalites, Abu Yoosuf and Muhammad from among the
Hanafites, al-Muzanee and Ibn Surayj from among the Shaafi'ites and
Ash-hab and Ibn al-Qaasim from among the Maalikites. He then says,
"Whoever considers these [scholars] and their statements will find out
that they did not adopt the opinions of the leaders [of their school of
jurisprudence]. In fact, their disagreements with their leaders were too
obvious to be denied. They showed different levels of disagreement.
These [mujtahidoon] occupy a position below that occupied by
independent mujtahiddon."
33

Mujtahid in his Madh-hab
Some usooliyyoon have mentioned that mujtahidoon of this type actually
belong to different categories:
a. Mujtahid at-Takhreej: This is one who exercises ijtihaad within
the confines of the leader of his madh-hab. He follows the principles laid
down by his leader and does not contradict them. He is well versed in
Islamic jurisprudence, its principles as well as the textual evidence in
support of legal rulings. He also has thorough knowledge of the rules
and procedures for reasoning by analogy (qiyaas), appreciates the
subtleties of the language and is capable of supplementing whatever his
leader has not laid down with something he has already laid down. As-
Suyootee and other scholars call a jurist who fits such a description
mujtahid at-takhreej.
34

b. Mujtahid at-Tarjeeh: This type occupies a position below that
occupied by mujtahid at-takhreej. He is also well versed in Islamic
jurisprudence, knowledgeable in the madh-had of his leader, knows all

32
See I'laam al-Muwwaqqi'een, 4/212.
33
I'laam al-Muwwaqqi'een, 4/213.
34
Muqaddimat al-Majmoo' Sharh al-Muhadh-dhab, 1/72. See also Musa Tawaanah, Ijtihaad
and our Dire Need for it in the Present Time (in Arabic), p. 364.
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the evidence furnished by his leader and is capable of exercising tarjeeh
(the ability to determine the preponderant opinion). As-Suyootee refers
to a mujtahid of this type as mujtahid at-tarjeeh.
35

c. Mujtahid al-Fatwaa: This is one who has thorough knowledge
of his madh-hab and is fully competent in understanding all cases
discussed in his madh-hab. He is capable of supplementing the legal
ruling not expressly stated by his leader with something he has already
stated if there is a chance to do so. He actually relies on what his leader
said or the verdicts he issued, which are basically established in the
madh-hab itself or the commentaries furnished by leading mujtahidoon in
this madh-hab on the statements made by the madh-hab's leader.
36

It is worth noting here, however, that the term mujtahid, as applied to
the last three types of mujtahidoon, is used rather loosely, with some
reservation. If we choose to be precise, the term muqallid would actually
fit their description despite the difference in their positions.
Al-Mujtahid al-Khaass (the Particular Mujtahid)
In view of the possibility of classifying ijtihaad into different
categories
37
, as the usooliyyoon maintain, there is yet a fourth category of
mujtahidoon, namely al-mujtahid al-khaass. This means he exercises ijtihaad
in one particular area of Islamic knowledge but adopts the opinion of
other scholars in their respective areas of specialty. He may also conduct
ijtihaad in one aspect of Islamic jurisprudence, such as sales and the law
of inheritance but adopts the opinion of others in other aspects of
Islamic jurisprudence. According to the usooliyyoon, a scholar can
exercise ijtihaad in one particular issue to the exclusion of other juristic
issues, in which case he may be referred to as mujtahid fee mas'alah
(mujtahid in a particular issue).
38

Ibn Qudaamah writes, "It is not one of the conditions of ijtihaad
conducted with regard to a particular issue (ijtihaad fee mas'alah) that the

35
Muqaddimat al-Majmoo' Sharh al-Muhadh-dhab, 1/72. See also Musa Tawaanah, Ijtihaad
and our Dire Need for it in the Present Time (in Arabic), pp. 367-368.
36
Dr. Wahbah az-Zuhaylee, Al-Waseet Fee Usool al-Fiqh al-Islaamee, pp. 547-548.
37
See Al-Mustasfaa, 2/353; Al-Mahsool, 2/709; Al-Aamidee's Al-Ihkaam, 3/140' Tayseer at-
Tahreer, 4/182; and Irshaad al-Fuhool, p. 237.
38
I'laam al-Muwwaqqi'een, 3/446; and Dr. Taha al-'Alwaanee, Ijtihaad and Taqleed in Islam
(in Arabic), p. 73.
Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al


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mujtahid exercises ijtihaad in all issues. Rather, if he fully knows and
understands the proofs supplied with regard to a particular issue or
anything related to it, then he is a mujtahid in that particular issue even if
is totally ignorant of other issues. A mujtahid who fully knows and
understands the law of inheritance in Islam and the fundamentals
regulating it does not necessarily have to fully know and understand
sales in order to be called a mujtahid in this particular issue. On account
of that, all leading jurists have refrained from dealing with certain legal
issues. It has rightly been said that whoever has a say in every issue
must be insane. If a scholar abandons the statement 'I do not know' [for
matters he does not know] will certainly make a mistake"
39

Part Three: Linguistic and Technical Definitions of
the Word Qadhaa'
A. Linguistic Definition
The word qadhaa' (pl. aqdhiyyah) is used in Arabic in a number of
senses including 'ordainment' and 'performing [a task]'. In Lisaan al-
'Arab, we read, "Qadhaa' means judging a matter and reaching a final
decision regarding it. Other senses also include 'informing',
'substituting', 'judging' and completing a task'."
40

B. Technical Definition
In its technical sense, Muslim jurists have furnished a number of
definitions for the term. The Hanafites define it as "[the process of]
settling disputes and ending disagreements in particular".
41
Some
Hanbalites have defined it as "[the process of] bringing to light the legal
ruling, making it binding and settling disputes".
42

There are other definitions which can generally be summarised as the
necessity of adopting the legal ruling which is essentially deduced from
the sources of legislation in Islam, namely the Qur'an, the Sunnah,
unanimous agreement (ijmaa') and analogical deduction or reasoning

39
Ibn Qudaamah, Al-Mughnee, 14/16.
40
Lisaan al-'Arab, 5/3665.
41
Haashiyat Ibn 'Aabideen, 5/352.
42
Sharh Muntahaa al-Iraadaat, 3/45.
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(qiyaas) and exercising ijtihaad which is required to consider them. In
addition, the legal ruling is to be considered binding in order to
distinguish it from the legal verdict (fatwa).
Part Four: General Conditions the Judge Must Meet
and the Controversial Issue In this regard
Muslim jurists have mentioned a number of conditions which a judge
(a qaadhee) must meet. They have generally agreed on some of these
conditions but expressed different opinions with regard to others.
Conditions upon which they have agreed, according to the majority of
jurists, include being a Muslim, being legally responsible (mukallaf)
43
,
being a man, being free and being upright. They are also generally
agreed that he must be able to hear, see and speak.
44

Despite their agreement on these matters, they have disagreed on
other conditions such as the judge's ability to write
45
and conduct
ijtihaad. It is this ability of exercising ijtihaad that the present paper
tackles, for scholars have expressed different opinions as to whether
exercising ijtihaad should be stipulated as a condition for the validity, or
otherwise, of executing judicial tasks. This issue is discussed below.
Section One: A. Discussion of the Controversial Issue
In the terminology of the usooliyyoon, the definition of the word ijtihaad
is provided in view of two things:
1. With regard to its descriptive or qualitative sense. In this case, it
is defined as "making every effort to comprehend the goals of the
Sharee'ah with a view to gaining some knowledge regarding a legal
ruling."

43
See Al-Hamawee, Adab al-Qadhaa', p. 21; Al-Maawardee, Al-Haawee al-Kabeer, 16/154;
and Dr Shakat 'Ulayyaan, As-Sultah al-Qadhaa'iyah Fee al-Islaam, p. 107.
44
See Ibn farhoon, Tabsirat al-Hukkaam, p. 21; Al-Hamawee, Adab al-Qadhaa', p. 21; As-
Sultah al-Qadhaa'iyah Fee al-Islaam, p. 1110 and Mahmood 'Arnoos, Taareeakh al-Qadhaa'
Fee al-Islaam, p. 76.
45
Tabsirat al-Hukkaam, p. 21; Dr. Faarooq Marsee, Al-Qadhaa' Fee ash-Sharee'ah al-
Islaamiyyah, p. 191.
Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al


112
Al-Adl (43)
2. With regard to it being a faculty or property which is established
regarding the person who performs ijtihaad. In this case, it is defined as
"the competence to infer expert legal rulings from foundational proofs."
We will discuss here meeting the condition of exercising ijtihaad on the
part of judges before taking office, for ijtihaad in this technical sense is
considered a condition for those who take up such a position.
As for ijtihaad in its general sense, namely to ponder over the case
presented, it seems to me that this ability is actually, more often than
not, inherent in the whole process of exercising the office of a judge; for
the judge will obviously consider the proofs produced by the litigants
and listen to the witnesses' statements, among other things. It is not this
meaning of ijtihaad that is discussed in the present paper. In fact,
disagreement has arisen among scholars regarding whether a judge
must meet the condition of conducting ijtihaad in its technical sense, as it
is not permissible, in the view of those who stipulate this condition, to
appoint to such a position a muqallid or an ignorant person.
In fact, a number of scholars who have tackled this issue have
discussed this controversy and asked, "If there are people who are
known for their integrity and their ability to exercise ijtihaad in its
technical sense in a certain period of time, will the condition of
exercising ijtihaad be considered necessary and thus the judge's
judgments be considered valid and must be acted upon, or will it be
considered a recommended course of action, in which case a muqallid
may be appointed to such a post despite the existence of judges who are
able to conduct ijtihaad?
Regarding lack of finding judges known for their integrity and ability
to exercise ijtihaad, no scholar, to the best of my knowledge, has ever
stipulated that a judge has to conduct ijtihaad, for this will certainly lead
to dispensing with the judge's services and people will consequently be
deprived of their rights. In fact, many scholars have made this point
abundantly clear when dealing with this particular issue. Quoting al-
Maaziree, a prominent Maalikite jurist who lived in the sixth century
after the Hegira (twelfth century according to the Gregorian calendar),
writes, "Preventing a muqallid from taking up the position of a judge in
this day and age will lead to suspending judgments, wreaking havoc
The Condition of Conducting Ijtihaad on the Part of Judges


113
Al-Adl (43)
and causing anarchy and disputes, and the Islamic Law is obviously
against all this."
46

The author of Al-Insaaf (Justice) also writes in this regard, "This has
been in practice for a very long period of time, otherwise people's
interests will have been lost."
47

B. Scholars' Views regarding this Issue
Scholars have expressed different opinions as to whether exercising
ijtihaad on the part of those who take up the position of a judge and
whether such a condition is necessary or merely recommended if there
are mujtahidoon in a certain period of time. Two views have been
expressed in this regard:
First Opinion: Ijtihaad is an obligatory condition to take up the office
of a judge. Therefore, it is not permissible to appoint someone to the
position of a judge if he cannot exercise ijtihaad. This was the view of the
majority of the Maalikites
48
, the Shaafi'ites
49
, the Hanbalites
50
and the
Dhaahirees.
51
Advocates of this view argue that appointing a muqallid or
an ignorant person to such an office when there are people known for
their integrity and ability to exercise ijtihaad is invalid and his judgments

46
Tabsirat al-Hukkaam, 1/27. See also Al-Qurtubee's Al-Mufhim Limaa Ushkila Min Talkhees
Kitaab Muslim, 5/167.
47
Al-Insaaf (the edition printed along with Ash-Sharh al-Kabeer), 21/302. See also Mughnee
al-Muhtaaj Sharh al-Minhaaj, 4/377.
48
Al-Hattaab's Mukhtasar Khaleel along with Mahaabib al-Jaleel, 8/66-67; Al-Kharshee 'Alaa
Mukhtasar Khaleel, 4/139; Ibn Shaass 'Iqd al-Jawaahir ath-Thameenah, 3/97; Tabsirat al-
Hukkaam, 1/26; and Al-Qurtubee's Al-Mufhim Limaa Ushkila Min Talkhees Kitaab
Muslim, 5/168-9.
49
An-Nawawee, Rawdhat at-Taalibeen, 8/83' Al-Maawardee, Al-Haawee al-Kabeer, 16/159;
and al-Hamawee, Adab al-Qadhaa', p. 27.
50
Al-'Akbaree, Ru'oos al-Masaa'il al-Khilaafiyyah, 6/957; and Ibn Qudaamah, Al-Mughnee,
14/14-5.
51
The Daahirees are followers of the Dhaahiree School of Jurisprudence whose followers
accepted only the most literal interpretation of the Quran and hadeeth. (Translator's
Note) See Ibn Hazm, Al-Muhallaa, 10/509.
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Al-Adl (43)
will not be considered effective even if his judgment is right as he is not
considered to have authority (wilaayah).
52

It appears from the statements of these and other scholars who have
written on this issue that the type of ijtihaad mentioned here which they
consider obligatory for the validity of holding the position of judge is
absolute (mutlaq) ijtihaad, for they have mentioned a number of
conditions which can only be met by a mutlaq mujtahid.
53
The definition
of this and other categories of mujtahidoon (sing. Mujtahid) is discussed in
Part Two of the present paper.
Second Opinion: Ijtihaad is a merely recommended condition to take
up the office of a judge. Therefore, it is permissible to appoint someone
to the position of a judge if he cannot exercise ijtihaad even if there are
people known for their integrity and ability to exercise ijtihaad. This was
the view of the majority of the Hanafites
54
and some Maalikites.
55

Advocates of this view argue that it is absolutely acceptable to appoint
a muqallid to the post of judge even if there is a mujtahid or a muqallid
better than him, for he can refer to the legal verdicts issued by other
jurists. The author of Al-Hidaayah (Guidance) writes in this connection,
"The most authentic view is that the condition of being able to exercise
ijtihaad is only a matter of priority."
56

Some Hanafite jurists have gone as far as to concede that an ignorant
person can actually act on someone elses position (i.e. do taqleeed)
without knowledge of his evidence. The author of Multaqaa al-Abhur
writes, "[The ability to] to exercise ijtihaad is only a matter of priority,
and an ignorant person can actually be appointed to the position of
judge."
57


52
Al-Maawardee, Al-Haawee al-Kabeer, 16/159' Mawaahib al-Jaleel, 8/67; and Tabsirat
al0Hukkaam, 1/26.
53
See for example Ibn Hubayrah, Al-Ifsaah, 2/345; Al-Hamawee, Adab al-Qadhaa', p. 27;
Al-Minhaaj along with its commentary Mughnee al-Muhtaaj, 4/375-7; and Ibn
Qudaamah, Al-Mughnee, 14/15-6.
54
Badaa'i' as-Sanaa'i', 7/3; Hashiyat Ibn 'Aabideen, 5/365; Al-Hidaayah Sharh Bidaayat al-
Mubtadee, 3/112; and Sharh al-Qadeer 'Alaa al-Hidaayah, 7/256.
55
Tabsirat al-Hukkaam, 1/27; and Ash-Sharh as-Sagheer Bi Haamish Bulghat as-Saalik, 2/330.
56
Al-Hidaayah Sharh Bidaayat al-Mubtadee, 3/112; and Sharh Fath al-Qadeer, 7/256.
57
Multaqaa al-Abhuralong with its commentary Majma' al-Anhur, 2/426.
The Condition of Conducting Ijtihaad on the Part of Judges


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Al-Adl (43)
By the word 'ignorant', the author does not however mean an ordinary
person but rather someone who cannot exercise ijtihaad; that is, he is
knowledgeable but imitates a certain scholar (i.e. he is a muqallid).
C. Evidence Produced
Advocates of the first opinion have furnished textual evidence from
the Qur'an and the Sunnah as well as rational evidence, as follows:
1. Evidence from the Qur'an
a. "And judge between them by what Allah has revealed."
58

In this verse, they argue, Almighty Allah commands his Prophet
(peace and blessings be upon him) to judge between people by what
Allah has revealed, and not to judge between them by imitating others.
59

b. "[We said], 'O David, We have made you a successor upon the
earth, so judge between people in truth and do not follow our own
desire, as it will lead you astray from the way of Allah.'"
60

Here, they contend, Almighty Allah commands His Prophet David
(peace be upon him) to judge between people in truth. Even if this was
the practice in divine laws revealed before the Qur'an, we have ample
evidence in the Islamic law which fully supports it. The Qur'an says,
"Allah commands you to render trusts to whom they are due and when
you judge between people to judge with justice."
61
The Qur'an also says,
"And if you judge, judge between them with justice."
62

2. Evidence from the Sunnah
a. The Prophet (peace be upon him) said, "If a judge gives a verdict
according to the best of his knowledge [by exercising ijtihaad] and his
verdict is correct, he will receive a double reward; and if he gives a

58
Surat al-Maa'idah, 5:49.
59
Ibn Qudaamah, Al-Mughnee, 14/14.
60
Surat Saad, 38:26.
61
Surat an-Nisaa', 4:58.
62
Surat al-Maa'idah, 5:42.
Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al


116
Al-Adl (43)
verdict according to the best of his knowledge and his verdict is wrong,
even then he will get a reward."
63

In this tradition, they argue, the Prophet (peace and blessings be upon
him) makes it clear that the judge gets rewarded when he passes the
wrong judgment and gets a double reward when he passes the right
judgment. He makes such a result conditional upon the effort he makes
in the words 'according to the best of his knowledge'. If such a condition
is missing, he will not be rewarded if he gives a verdict without
exercising ijtihaad. Rather, he will be considered a sinner; and if his
verdict is wrong, he will not be excused.
64

b. The Prophet (peace and blessings be upon him) said, "Judges are
of three types, one of whom will go to Paradise and two to Hell. The one
who will go to Paradise is a man who knows what is right and gives
judgment accordingly; but a man who knows what is right and acts
tyrannically in his judgment will go to Hell; and a man who gives
judgment for people when he is ignorant will go to Hell."
65

In this report, they maintain, the Prophet (peace and blessings be upon
him) considers the judge who judges out of ignorance one of the two
judges to be admitted into Hell fire. This clearly shows that it is not
permissible for someone who does not know truth along with its
evidence, namely the mujtahid, to fill a judicial post.
66

c. Some companions of Mu'aadh ibn Jabal (may Allah be pleased with
him) said, "When Allah's Messenger (peace and blessings be upon him)
intended to send Mu'aadh ibn Jabal to Yemen, he asked him, 'How will
you judge when the occasion of deciding a case arises? He replied, 'I
shall judge in accordance with Allah's Book.' He then asked him, 'What

63
Reported by al-Bukhaaree on the authority of 'Amr ibn al-'Aass (may Allah be pleased
with him), Book of Holding Fast to the Qur'an and the Sunnah, 8/157; and Muslim, Book of
Judgments, 3/1342, hadeeth no. 1716.
64
Fath al-Baaree, 13/318-9. See also As-Siraaj al-Wahhaaj Min Kashf Mataalib Saheeh Muslim
ibn al-Hajjaaj, 6/413-4.
65
Reported by at-Tirmidhee, Book of Rulings, 3/613; Abu Daawood, Book of Judgments,
3/299; and Ibn Maajah, Book of Rulings, 2/776.
66
Al-Mughnee, 14/14; As-Siraaj al-Wahhaaj Min Kashf Mataalib Saheeh Muslim ibn al-Hajjaaj,
6/415, As-San'aanee, Subul as-Salaam, 4/324; Al-Maawardee, Al-Haawee, 16/160; Al-
Qurtubee, Al-Mufhim Limaa Ushkila min Talkhees Kitaab Muslim, 5/168.
The Condition of Conducting Ijtihaad on the Part of Judges


117
Al-Adl (43)
will you do if you do not find any guidance in Allah's Book?' He replied,
'I will act in accordance with the Sunnah of the Messenger of Allah.' He
asked, 'What will you do if you do not find any guidance in the Sunnah
of the Messenger of Allah and in Allah's Book?' He replied, 'I will do my
best to form an opinion and I will spare no effort.' The Prophet (peace
and blessing be upon him) then patted him on the chest and said, 'Praise
be to Allah Who has helped the messenger of the Messenger of Allah to
find something which pleases the Messenger of Allah.'"
67

Here, they argue, the Prophet (peace and blessings be upon him)
approved Mu'aadh's step to exercise ijtihaad after trying his best to find
the right ruling in the Qur'an and the Sunnah. This evidently indicates
that ijtihaad is a characteristic which the judge must possess. Were taqleed
permissible, the Prophet (peace and blessings be upon him) would have
made it clear there and then.
68

3. Rational Evidence
a. Passing a judgment is much weightier than issuing a legal verdict
(fatwa), as the former becomes binding.
69
The mufti is not supposed to be
an ordinary person who is given to imitating others, and it is all the
more so with the judge.
70

An Objection and its Refutation
Opponents of this view have strongly objected to this evidence, saying
that it is permissible that a mufti can inform others of whatever he has
heard, and so can the judge. In refutation of this, it has been argued that
it is true that a mufti can indeed inform others of whatever he has heard
but he can rightly be called a transmitter (mukhbir) in this case, but he
needs to transmit information from a person who exercises ijtihaad, in

67
Reported by Abu Daawood and others.
68
Al-Qaraafee, Adh-Dhakheerah, 10/21.
69
Muslim scholars say, al-mufti mukhbir wal-qaadhee mujbir, meaning, "A mufti transmits
whereas a judge enforces." Someone who goes to a court of law and presents his case
before a judge is legally bound to follow the conclusion of the judge whereas someone
who asks a mufti for the ruling on a particular question is not legally bound to follow
what the mufti says; he can go to another mufti and take his opinion. (Translator's
Note)
70
Al-Mughnee, 14/14-5. See also Ru'oos al-Masaa;il al-Khilaafiyyah. 6/958.
Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al


118
Al-Adl (43)
which case the information he imparts will be acted upon but not his
legal verdict (fatwa).
71

b. The Muslim ruler to his subjects is just like a guardian to an orphan,
in which case he ought to take into account the common good. He must,
for instance, prevent a person who is not qualified as a doctor to practise
medicine. In the same vein, he ought to prevent people who are ignorant
of Islamic jurisprudence to engage in such a discipline, especially if it
comes to executing judicial tasks, for such a position is not only confined
to a certain practice but also enforces legal judgments. A muqallid, and
with greater reason an ignorant person, does not know anything about
Islamic jurisprudence, which requires the knowledge to infer expert
legal rulings from foundational proofs.
72

c. Taqleed (imitation) with regard to the minor issues in Islamic Law is
a necessity and only an ordinary person needs it due to his inability to
derive legal rulings from Islamic sources. Almighty Allah wants us to
worship him only in accordance with the Qur'an and the Sunnah;
therefore, if taqleed is permissible only for someone who is in dire need
of it, then, as the Islamic maxim goes, a dire necessity should strictly be
measured according to what it actually is (adh-dharoorah tuqaddaru bi
qadarihaa). A muqallid judge should not impart this ruling to others by
making it incumbent upon the litigants to follow the school of
jurisprudence of the leader he is following.
73

d. Incidents are numerous and divine texts are limited, and the judge
would not always find the text he needs to settle a dispute, in which case
he needs to derive rulings from the available texts. This cannot be done
unless he is a mujtahid.
74

Advocates of the second opinion have also furnished some evidence in
support of their view, including the following:
a. Qadhaa' (the office and functioning of a judge) has been primarily
established to settle disputes and render rights to those entitled to them,
and this can be realised by merely appointing a muqallid to such a

71
Al-Mughnee, 14/15.
72
I'laam al-Muwaqqi'een, 4/217. See also Nidhaam al-Qadhaa' Fee al-Islaam, p. 21.
73
Al-Maawardee, Al-Ahkaam as-Sultaaniyyah, p. 66.
74
As-Sadr ash-Shaheed, Sharh Adab al-Qaadhee, 1/128.
The Condition of Conducting Ijtihaad on the Part of Judges


119
Al-Adl (43)
position as he can pass a judgment by adopting the views of other
scholars and referring to their statements and legal verdicts.
75

In refutation of this, it has been argued that qadhaa' (the office and
functioning of a judge) has not been established to settle disputes in any
manner but rather to settle them in accordance with the rulings laid
down by the Islamic Law. Therefore, if the judge is ignorant or is a mere
muqallid, this objective will by no means be realised, for a muqallid judge
would not know that he has passed a judgment based on Islamic
knowledge, hence his ignorance. Besides, referring to others' opinions
does not constitute a form of ijtihaad at all.
76

b. If the muqallid judge is allowed to seek a legal verdict regarding
himself, then he is also allowed to use the same verdict with regard to
other people who seek his judgments, as both cases represent the same
ruling with knowledge.
77

In refutation of this, it has been argued that an ordinary person feels
compelled to take others' verdicts, whereas the judge is not.
Furthermore, an ordinary person applies it only to himself, while the
judge enforces it on others.
78

c. Appointing a muqallid judge who follows a certain school of
jurisprudence (madh-hab) is the best policy, as it is in the public' best
interest to approve of the judge following a certain school of
jurisprudence. Besides, he will be free from accusations because he will
only pass a judgment based on the preponderant view adopted by the
leader of the madh-hab he is following as long as he has held such a
position on condition that he would follow his madh-hab to issue
judgments.
79

In refutation of this evidence, it has been contended that the claim that
appointing a muqallid person to execute judicial tasks is the best policy is
ungrounded, for Almighty Allah wants us to worship Him in
accordance with the dictates of His Book (i.e. the Qur'an) and the

75
Sharh Fath al-Qadeer, 6/360; Badaa'i' as-Sanaa'i', 7/3.
76
Al-Maawardee, Al-Haawee al-Kabeer, 16/160' and Ru'oos al-Masaa;il al-Khilaafiyyah,
6/958.
77
Al-Haawee al-Kabeer, 16/159.
78
Ibid. 16/160
79
Jamaal al-Marsafaawee, Nidhaam al-Qadhaa' Fee al-Islaam, p. 21.
Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al


120
Al-Adl (43)
practice (Sunnah) of His Messenger (peace and blessings be upon him)
and commands us to refer to them in all matters. The Qur'an says, "And
judge between them by what Allah has revealed."
80

Furthermore, it has been argued, novel incidents and judicial cases are
unlimited, and the texts which the scholar whom the judge imitates are
confined to what happened in his time. How then can the judge issue
judgments regarding novel judicial cases if he cannot exercise ijtihaad?
It has been further argued that the claim that the judge will be free
from accusations because he will only pass a judgment based on the
preponderant view adopted by the leader of the madh-hab is baseless, as
integrity and justice constitute some of the conditions a mujtahid must
meet in order to accept his legal verdicts and judgments. Therefore,
appointing such a qualified judge who is known for his integrity will
make him free from accusations in the first place.
81

If it is permissible that the judge can pass a judgment based on the
testimony given by two witnesses despite his ignorance of what they
have done to make the testimony valid and pass a judgment based on
the value stated by a muqawwim
82
despite his ignorance of how he
managed to do so to determine the correct value, then it is also
permissible that he can use the verdict and judgment of others despite
his ignorance of how they managed to produce a correct verdict and
judgment.
83

In refutation of this evidence, it has been argued that just as the means
of giving testimony is considered, namely reason, sight and hearing as
receptive tools and the mind and the tongue as productive tools, so the
means of passing judgments, that is ijtihaad, is to be taken into account
when executing judicial tasks.
84


80
Surat al-Maa'idah, 5:49.
81
Nidhaam al-Qadhaa' Fee al-Islaam, p. 22. See also Dr. Faarooq Marsee, Al-Qadhaa' Fee ash-
Sharee'ah al-Islaamiyyah, p. 189.
82
A muqawwim is an expert who can determine the like things for payment of
compensation for the things damaged or perished and compensation for offences.
(Translator's Note)
83
Al-Haawee al-Kabeer, 16/160.
84
Al-Haawee al-Kabeer, 16/160.
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121
Al-Adl (43)
It has been further argued that the analogy employed is irrelevant, for
the judge is ignorant of the manner in which the like things for payment
of compensation for the things damaged or perished (taqweem) has been
determined, and thus he has based his judgment on the statement of an
expert (i.e. the muqawwim). A muqawwim is knowledgeable about the
prices of the various commodities. Given that qadhaa' (the office and
functioning of a judge) requires judging by the laws Allah has revealed,
a judge ought to be knowledgeable about the ways and means to reach a
sound judgment.
85

The Preponderant View
After examining the forgoing proofs and arguments furnished by
proponents of both opinions, it seems to me (and Allah knows best) that
the preponderant view is the second one, namely the one whose
proponents hold that ijtihaad is a necessary condition for the validity of
holding the office of judge. In fact, this is the very view adopted by the
majority of Muslim jurists given the cogent evidence brought forth and
the convincing arguments furnished. Some scholars have gone as far as
to contend that there is unanimous agreement amongst jurists regarding
this view. This was actually the established opinion during the time of
the Prophet's companions, the generation of Muslims immediately after
them (the Taabi'oon) and the leading scholars who followed them. Imaam
Ash-Shaafi'ee writes in this regard, "It is not permissible for a judge to
imitate anyone in his time even if the latter seems to be more
knowledgeable and more discerning than him, nor is he allowed to pass
a judgment about something he does not know anything about"
86

Al-Haafidh Ibn 'Abd al-Barr also writes, "To the best of my knowledge,
scholars in Madeenah and beyond are generally agreed that only a
trustworthy person who is known for his devoutness, integrity, good
understanding and knowledge should hold the office of judge. They
have also stipulated that he should be knowledgeable about the Sunnah,

85
Al-Maawardee, Adab al-Qaadhee, 1/641. See also Dr. Shawkat 'Ulayyaan, As-Silsilah al-
Qadhaa'iyyah fee al-Islaam, p. 129.
86
Al-Umm, 6/203.
Dr. Abdul Azeez ibn Abdur-Rahmaan ibn Abdul-Azeez Al-Mish'al


122
Al-Adl (43)
the deeds and utterances of the Prophet's companions (aathaar), Qur'anic
rulings, all aspects of Islamic jurisprudence and the issues about which
scholars have expressed different opinions. Maalik (rahimahullaah) said,
'He should not be appointed to such an office unless he has become
knowledgeable about the issues about which the Prophet's companions
and the leading Taabi'oon in Madeenah expressed a difference in
opinion.'"
87

Ash-Shawkaanee quotes Abu 'Ali al-Karaabeesee, one of Ash-
Shaafi'ees's companions, in his book Adab al-Qadhaa', as saying, "Past
scholars are generally agreed that the person who is best entitled to hold
the office of judge is one who is known for amiability, integrity,
erudition and devoutness. They are also agreed that he has to be
knowledgeable about the Book of Allah (i.e. the Qur'an), most of its
rulings, the sayings of Allah's Messenger (peace and blessings be upon
him), the statements of the Prophet's companions and the issues about
which Muslim scholars have expressed agreement and
disagreement"
88

Furthermore, it is well-known that the judge is required by the Islamic
Law to judge between people in truth, and he can in way do so unless he
is knowledgeable about the Qur'an and the Sunnah and is able to
exercise ijtihaad. In fact, there are numerous novel cases and the texts are
rather limited, and it is obvious that the judge will not find a text which
will help him settle the dispute, hence the dire need to derive rulings
from the sources. He can only do this if he is well acquainted with
ijtihaad and the means to undertake it.
What has thus far been discussed relates to the case where there are
actually trustworthy judges who conduct ijtihaad during a certain period
of time.
Section Two: The Effect of Disagreement in this Issue
We will discuss here the effect of disagreement regarding the issue of
stipulating the ability of exercising ijtihaad on the part of judges on the

87
Ibn 'Abd al-Barr, Al-Kaafee Fee Fiqh Ahl al-Madeenah al-Maalikee, 2/952.
88
Ash-Shawkaanee, Nayl al-Awtaar, 8/265.
The Condition of Conducting Ijtihaad on the Part of Judges


123
Al-Adl (43)
practical side. This effect, however, varies depending on whether or not
there are qualified judges who can exercise ijtihaad.
Part One: The Effect of Disagreement when there are
Judges who Exercise Ijtihaad
It has already been mentioned that the majority of Muslim jurists are
agreed that ijtihaad is a necessary condition for the validity of holding
the office of judge, and that it is not permissible to appoint as judge
other than one who is actually able to conduct ijtihaad. Therefore, if there
are such types of judges, it is permissible to appoint other than them.
Here the effect of such view becomes apparent, as its advocates contend
that appointing a muqallid to such an office when there are judges
known for their integrity and ability to exercise ijtihaad is invalid. They
also maintain that his judgments will not be considered effective even if
they are right, as he is not considered to have authority (wilaayah). This
is the practical effect of stipulating such a condition.
As for those who do not stipulate such a condition and consider it to
be rather recommended, they hold that it is acceptable to appoint a
muqallid to the post of judge even if there is a mujtahid or a muqallid
better than him. This was the view of the majority of the Hanafites and
some Maalikites. In fact, some jurists amongst them have gone as far as to
say that an ignorant person can actually hold the office of judge. The
author of Multaqaa al-Abhur writes, "[The ability to] to exercise ijtihaad is
only a matter of priority, and thus it is permissible to appoint an
ignorant person to the position of judge."
89

If what is meant by the word 'ignorant' is someone who has not
acquired religious knowledge nor has any juristic abilities, then such a
view is definitely unacceptable as it contradicts textual evidence from
the Qur'an and the Sunnah as well as rational evidence, some of which
has been mentioned above in the course of delineating the evidence
produced by the majority of jurists.
Besides, such a view cannot possibly be translated into reality, for how
can an ignorant person who does not understand the litigants'

89
Multaqaa al-Abhur along with its commentary Majma' al-Anhur, 2/426.
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Al-Adl (43)
statements, the claim's conditions and the various proofs and which one
are to be accepted or rejected hold such an exacting position? In
addition, in every step of undertaking judicial tasks, he will need the
constant assistance of someone to enlighten him on the various proofs
before him and the ruling regarding certain terms, among other things,
in which case he will be reduced to a passive and receptive person who
will naively act on other people's prompts.
In summary, it is unthinkable for such a thing to take place in the
court, and were it to happen, the court proceeding would not be serious
and the court sessions would be more like a mockery than a place where
truth and justice are upheld.
90

As a matter of fact, Ibn Ghars, a prominent Hanafite jurist from the
ninth century after the Hegira, dealt with this issue and went as far as
stating that such a view should not be attributed to any of the leading
Hanafite jurists. He added, "The ordinary person is not entitled to hold
the position of judge, and this was the view of the past [Hanafite]
scholars."
91

He also mentioned that the main reason behind the difference between
the Hanafites and followers of others schools of jurisprudence lies in the
stipulation of absolute (mutlaq) ijtihaad. The Hanafites, he stated, did not
stipulate this condition while others did. In defence of the Hanafite
position, Ibn al-Ghars also mentioned that even if they did not stipulate
such a condition, they required the judge to be generally knowledgeable
and qualified for the post. He argued that it is not true that past
[Hanafite] mujtahidoon, let alone their leading figures, opined that an
ignorant person is allowed to hold the position of judge. "It is not right,"
he argued, "that some common people who do not seem to understand
the basics of worldly matters, let alone the lofty ones, to attribute such
an opinion to any past [Hanafite] mujtahid, let alone any of their leading
figures, for holding the post of judge is the most honourable position in
Islam, after that of the ruler."
92


90
Dr. Faarooq Marsee, Al-Qadhaa' Fee ash-Sharee'ah al-Islaamiyyah, p. 189-91; and Jamaal
al-Marsafaawee, Nidhaam al-Qadhaa' Fee al-Islaam, pp. 23-4.
91
Mahmood 'Arnoos, Taareeakh al-Qadhaa' Fee al-Islaam, p. 79. The author quotes Ibn al-
Ghars in his famous book Al-Fawaakih al-Badriyyah Fee al-Aqdhiyyah al-Hukmiyyah.
92
Ibid. pp. 79-80.
The Condition of Conducting Ijtihaad on the Part of Judges


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Al-Adl (43)
Part Two: The Effect of Disagreement in the Absence
of Judges who Exercise Ijtihaad
We have already mentioned that disagreement on this issue is
confined to whether it is permissible to appoint a muqallid as judge if
there are qualified people in a certain period of time who can actually
exercise ijtihaad. In case there are no qualified judges who can conduct
ijtihaad in a certain period of time, both parties agree that it is
permissible to appoint a judge who cannot exercise ijtihaad, as this is a
dire necessity, in which case he is called 'a judge out of necessity' by
those who stipulate the condition of ijtihaad.
93

As for those who do not stipulate this condition, they do not use such
an appellation because they consider it permissible to appoint a less
qualified person (mafdhool) in the presence of a qualified person (faadhil).
This is based on their view that ijtihaad merely constitutes a priority and
recommended condition.
It becomes clear from the foregoing discussion that the effect of
disagreement between the two parties is confined to how they actually
view the judge who does not exercise ijtihaad. Those who stipulate the
condition of ijtihaad call him 'a judge out of necessity', while those who
do not make such a stipulation do not consider him as such.
Conclusion
All praise is due to Allah, and may His peace and blessings be upon
our Prophet Muhammad, his family and all his companions.
The present paper has discussed a highly important issue relating to
the qualification of judges, namely stipulating the condition of ijtihaad
for those who are entrusted with such an important task in Islam.
Following is a summary of the most important points discussed in the
paper:
1. The introduction has served as a prelude to the main topic in that
it has provided the linguistic and technical definitions of the word

93
Ibn Muflih, Al-Furoo', 6/422.
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Al-Adl (43)
ijtihaad and listed the categories of mujtahidoon. This served to identify
the aims and objectives of the present paper.
2. It has also furnished the linguistic and technical definitions of the
word 'qadhaa'' and the conditions a judge must meet and has explained
that the condition of ijtihaad is the issue the paper primarily tackles. It
has also explained that by qadhaa' is not meant the judge's ability to
ponder over the case presented before him but rather whether or not he
qualifies as a judge. This requires him to satisfy the necessary conditions
a mujtahid must meet, as the usooliyyoon have clearly stated
3. The first section of the paper delineates the disagreement
scholars have expressed regarding the condition of ijtihaad on the part of
judges, which is the main topic of the paper. The first part in this section
discusses this controversial issue and explains that the condition of
ijtihaad which has triggered off this controversy and which the judge
must meet is ijtihaad in its technical sense, namely the competence to
infer expert legal rulings from foundational proofs, as has been stated by
the usooliyyoon.
4. A number of scholars who have tackled this issue have discussed
this controversy and asked, "If there are people who are known for their
integrity and their ability to exercise ijtihaad in its technical sense in a
certain period of time, will the condition of exercising ijtihaad be
considered necessary and thus the judge's judgments be considered
valid and must be acted upon, or will it be considered a recommended
course of action, in which case a muqallid may be appointed to such a
post despite the existence of judges who are able to conduct ijtihaad?
Regarding lack of finding judges known for their integrity and ability to
exercise ijtihaad, no scholar has ever stipulated that a judge has to
conduct ijtihaad, for this will certainly lead to dispensing with the judge's
services and people will consequently be deprived of their rights.
5. The preponderant view regarding the issue is the one whose
proponents hold that ijtihaad is a necessary condition for the validity of
holding the office of judge. In fact, this is the view adopted by the
majority of Muslim jurists given the cogent evidence brought forth and
the convincing arguments furnished. Some scholars have gone as far as
The Condition of Conducting Ijtihaad on the Part of Judges


127
Al-Adl (43)
to contend that there is unanimous agreement amongst jurists regarding
this view. However, this is dependent on the existence of judges who are
known for their integrity and ability to exercise ijtihaad in a certain
period of time.
6. The second section deals with an important aspect of the subject
under study, namely the effect of disagreement in this issue. Two cases
have been presented:
a. The majority of Muslim jurists hold that a judge must meet the
condition of being able to exercise ijtihaad and that this condition
constitutes a dire necessity. Therefore, appointing a muqallid or an
ignorant person to such an office while there are udges known for their
integrity and ability to exercise ijtihaad is invalid and his judgments will
not be considered effective even if his judgment is right as he is not
considered to have authority (wilaayah).
Those who do not stipulate such a condition maintain that ijtihaad is
merely a matter of priority and recommendation. Therefore, they argue,
it is absolutely acceptable to appoint a muqallid to the post of judge even
if there is a mujtahid or a muqallid better than him, for he can refer to the
legal verdicts issued by other jurists.
It has also become clear that what is meant by the word 'ignorant',
according to those who hold that an ignorant person, is not someone
who has not acquired religious knowledge nor has any juristic abilities,
for such a view is definitely unacceptable as it contradicts textual
evidence from the Qur'an and the Sunnah as well as rational evidence.
Hanafite jurist Ibn al-Ghars has dispelled this myth in the course of citing
Hanafite scholars' stand on this issue.
b. In case there are no qualified judges who can conduct ijtihaad in a
certain period of time, both parties agree that it is permissible to appoint
a judge who cannot exercise ijtihaad, as this is a dire necessity, in which
case he is called 'a judge out of necessity' by those who stipulate the
condition of ijtihaad. As for those who do not stipulate this condition,
they do not use such an appellation because they consider it permissible
to appoint a less qualified person (mafdhool) in the presence of a
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Al-Adl (43)
qualified person (faadhil). This is based on their view that ijtihaad merely
constitutes a priority and recommended condition.
These are the most important findings of the present paper, but it
remains to be said that Allah knows best. Finally, we pray to Almighty
Allah to shower His peace and blessings upon our Prophet Muhammad,
his family and all his companions.